Tennessee prosecutor threatens pride event, warning he will enforce anti-drag law

Law Dork was provided a memo that Blount County prosecutor Ryan Desmond sent to law enforcement, Blount Pride, and other officials. A lawsuit is expected Wednesday.

The prosecutor for Tennessee’s Blount County is threatening a local Pride event planned for this weekend, Law Dork has learned, asserting that he intends to enforce the state’s new anti-drag law despite a federal court ruling elsewhere in the state that the law is unconstitutional.

Law Dork has been been provided and is publishing the “notice” that the prosecutor, Ryan Desmond, sent. Law Dork has also been informed that a lawsuit against Desmond is expected to be filed in federal court on Wednesday.

That is not at all surprising, given the nature and potential effects of Desmond’s three-page memorandum regarding the Adult Entertainment Act (AEA) — the formal name of the anti-drag law passed in Tennessee earlier this year.

Through the letter, Desmond, the district attorney general for the 5th Judicial District (Blount County) of Tennessee, has also informed three law enforcement heads — the county sheriff and two police chiefs — of his plans regarding the law. The move both empowers law enforcement to investigate alleged violations of the law and chills the the speech and expressive activities of anyone in Blount County under Desmond’s jurisdiction.

The threat from Desmond comes nearly three months after a federal judge elsewhere in Tennessee struck down the law. In a case out of Shelby County challenging the AEA, U.S. District Judge Thomas Parker, a Trump appointee, declared on June 2 that the AEA “is an unconstitutional restriction on speech.”

In Desmond’s letter, the prosecutor — who was elected last year and has been in office for just shy of a year — brushed aside Parker’s ruling and aggressively put forth his plan to enforce the law when he deems it appropriate.

The undated letter, which Law Dork is told was received on Tuesday, was allegedly sent in light of “numerous communications“ that Desmond claimed he received about “a coming event planned for September 2, 2023, that is marketing itself in a manner which raises concerns that the event may violate certain criminal statutes within the State of Tennessee.”

Blount Pride is scheduled for Sept. 2, and it is the only event listed as a recipient to the letter. Most of the other non-law enforcement recipients of the letter, moreover, are representatives or leaders of the entities — Maryville College and the cities of Maryville and Alcoa — behind the space where the pride event is being held. (The county is immediately south of Knoxville.)

From the Blount Pride website

“The Attorney General for the State of Tennessee maintains that the AEA passes constitutional muster, has appealed this holding, and further opined that the ruling is binding only on the 30th Judicial District,” Desmond wrote regarding Parker’s ruling.

The argument here is that, ultimately, the only defendant enjoined by Parker’s order was the Shelby County District Attorney General. However, it should also be noted that that prosecutor, Steven Mulroy, was represented in his official capacity in the litigation by Tennessee Attorney General Jonathan Skrmetti’s office. And, of course, Parker — after considering those arguments from Skrmetti’s office — declared the law to be unconstitutional. It also should be noted that, although Desmond is correct that Skrmetti’s office appealed Parker’s ruling, the attorney general’s office did not seek a stay of Parker’s decision during their appeal.

Desmond, however, stated that he sided with the attorney general’s office: “My legal analysis leads me to concur with the State Attorney General, both as to the constitutionality of the AEA as well as the applicability of the District Court's order controlling only the District Attorney for the 30th Judicial District.” Desmond, however, provided none of that claimed “legal analysis” in the memo.

With that established, Desmond then made clear his intent to bring prosecutions, while attempting to claim that he was not engaged in pre-judging a case: “It is my conclusion that violations of the AEA can and will be prosecuted by my office, however it is important to note that we do not prematurely evaluate the facts or evidence related to a potential investigation into possible criminal conduct.”

Lest one be left with any impression that Desmond was seeking to be reasonable, he immediately went on to make clear that is not so, stating that his office conducted a “diligent search” to find what appears to be a way to seek a prior restraint against Blount Pride:

It should be noted at this point that a diligent search of relevant statutory authority has revealed no mechanism under which a District Attorney General in the State of Tennessee could petition for a temporary injunction to enjoin an individual or group from organizing and holding an event that would be violative of the AEA.

In other words, Desmond and his staff looked high and low for a way to violate the Constitution, but they came up empty-handed. (Also, one could argue that this undercuts Desmond’s claim elsewhere in the letter that he is not pre-judging whether the event would violate the AEA.)

Desmond then went on to summarize the anti-drag law, which Law Dork covered repeatedly as it made its way through the Tennessee legislature earlier this year, in order “[t]o apprise all interested parties of what conduct is criminalized” under the law.

The prosecutor then reiterated his attempt to make this an acceptable letter for a public official to send, writing, “It is certainly possible that the event in question will not violate any of the criminal statutes, however if sufficient evidence is presented to this office that these referenced criminal statutes have been violated, our office will ethically and justly prosecute these cases in the interest of justice.”

Just because a public official writes the word “ethically” in his letter, however, does not make the letter ethical.

In fact, it’s hard for me to imagine a more clear example of a public official intending to create a “chilling effect” on speech — particularly given the history of law enforcement abuse of LGBTQ people — than a prosecutor literally sending a letter to law enforcement, pride organizers, and the entities that run the space where the pride event is being held asserting that he is concerned that that event “may violate” a new criminal law and that he intends to prosecute alleged violations of that law — particularly where that law has already been declared unconstitutional elsewhere in the state.

Finally, if that weren’t enough, Desmond closes with a paragraph addressing the possibility of “protestors and counter-protestors” at Blount Pride. For the first time in his three-page letter, only then does Desmond mention either the First Amendment or the Fourteenth Amendment — highlighting everyone’s right to protest and claiming, again for the first time in the letter, that “the Blount County District Attorney's Office has great respect and deference to individuals’ constitutional rights.”

Even here, though, it’s notable that, while acknowledging that protestors would be subject to prosecution for “assault, vandalism, criminal trespassing, and disorderly conduct,” Desmond is raising this in a “both sides” way by framing the entire paragraph — both the rights and limitations — as being about “protestors and counter-protestors” present there.

This is a developing story, and it was updated and expanded after initial publication, with the final update at 10:45 p.m. Check back at Law Dork for the latest.